The Statement of Claim for invalidation of the DBZ
To the Medeu District Court of Almaty
Republic of Kazakhstan, Almaty,
34 Nusupbekov St., 050016.
The plaintiff: ______________
IIN ______________
address: ________________________
Representative by proxy:
Sarzhanov Galymzhan Turlybekovich
IIN: 850722301036.
Almaty, Medeu district,050002, Zhibek Zholy ave.,
50, office 202, Business center Quarter.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 (708) 578 57 58.
The defendant: ______________
BIN: ______________
address:______________
Statement of claim
on the recognition of the Bank Loan Agreement No. __-20__ of March 16, 20__ as invalid
Between ______________ ( next is the Defendant) and ______________ ( hereinafter referred to as the Plaintiff), a Bank loan Agreement was concluded no. __20__ dated November 15, 20__ (hereinafter referred to as In the Loan Agreement), according to which the Borrower was provided with a bank loan in the amount of USD 400,000 for the completion of construction, at 13.5% per annum, where the bank's remuneration is USD 533,787, the principal debt is USD 400,000, and the total payment by November 15, 20__ amounted to USD 933,787.
As a result of non-fulfillment of contractual obligations, the Bank decided to recover the amount under the Bank Loan Agreement in court and on February 29, 20__ by the Decision of the District Court No. 2 of the Auezovsky district of Almaty, the statement of claim ______________ – satisfied and decided to collect from ______________ the amount of debt under the bank loan agreement in the amount of 130,195,431.48 tenge, and the refund of the amount of the state duty in the amount of 3,905,863 tenge. However, after a detailed study of all the collected documents, namely:
Personal account statement no. __, for the period from 01.11.20__ to 08.02.20__ year.
Data about the subject of credit histories obtained from the First Credit Bureau LLP.
We have established: In the personal account ___ (issued by the bank to the borrower). The loan was transferred on November 16, 20__ in the amount of 400,000 US dollars, and on November 17, 20__, according to the application, the principal loan in the amount of 46,793 US dollars was cancelled ahead of schedule. After that, First Credit Bureau LLP and I requested Information about the subject of the credit history. According to the data of the credit bureau, gr. ______________ She received a loan in the amount of 47,500 US dollars, according to Agreement No. __ dated 03/16/20__, secured by collateral for real estate in the amount of 9 496 015 tenge.
After that, according to the information of First Credit Bureau LLP, we requested from the bank a Bank loan Agreement No. __ dated 03/16/20__, where real estate in the amount of KZT 9,496,015, a repayment schedule, a Pledge Agreement, an assessment for collateral, an insurance contract and other documents under this agreement. However, the Bank has not given a reasoned response to our repeated requests, all letters are attached. It has only provided a Bank Loan Agreement No. __ -20__ dated March 16, 20__ in the amount of USD 47,500 addressed to ______________, This agreement has a lot of There are no contradictions to the law on banking (there is no collateral, there is no schedule, there is no document confirming the assessment of the collateral, there is no confirmation of the borrower's signature by a bank employee, and the Borrower's signature does not match). But under this Bank Loan Agreement, the real estate located at: _____________________Provided For In Article 307 of the Civil Code of the Republic of Kazakhstan. The pledge agreement must specify the subject of the pledge, the nature, amount or maximum amount, and the time period for fulfilling the obligation secured by the pledge.
If the subject of the pledge is immovable property, its valuation must be indicated in the pledge agreement. Movable property and (or) certain categories of movable property (including machinery and working capital stocks) that are the subject of collateral may have a general description of the pledged item without requiring a specific description of the collateral. The pledge agreement must also contain an indication of which of the parties is in possession of the pledged property and the permissibility of its use.
The pledge agreement must be concluded in writing. According to clause 3.1 of the Bank Loan Agreement no. __-20__ dated March 16, 20__, it is stated "A bank loan is provided by transferring money from the Borrower's loan account to the Borrower's current account" however, the borrower has the only open account in the bank, which is account no. ___ in connection with what we have stated with the bank An account statement was received for the above-mentioned Bank Loan Agreement no. __-20__ dated March 16, 20__, however, the transfer to the account of ____ in the amount of $ 47,500 was not detected. This amount is not reflected in the calculations. In the personal account ___ (issued by the bank to the borrower). However, the statement indicates the transfer of the loan on November 16, 20__ in the amount of 400,000 US dollars, and on November 17, 20__, according to the statement, the principal loan in the amount of 46,793 US dollars is being repaid ahead of schedule, under the Bank Loan Agreement no. __-20__ of the year dated March 16, 20__ of the year.
The Statement of Claim for invalidation of the DBZ
According to the data of the credit bureau issued by the PSC and bank statements issued, the borrower does not have another loan from the bank. According to clause 5.2.3 of the Bank Loan Agreement No. __20__ dated March 16, 20__, it is specified "Before receiving a bank loan, conclude a voluntary insurance Agreement with JSC Insurance Company ______________The policy is now ______________ about the Borrower's accident insurance," however, according to the letter received ______________ the company does not have information on the Borrower's insurance ______________from an accident" - not available.
Taking into account Article 306 of the Civil Code of the Republic of Kazakhstan, a contract or legislative acts may impose on the mortgagee the obligation to insure the mortgaged property transferred to his possession. The insurance of the pledged property, which remains in the use of the pledgor, is assigned to the latter. Dear Court, The Plaintiff asserts and proves by all the above-mentioned circumstances that she did not receive a loan in the amount of 47,500 US dollars, according to the Bank Loan Agreement No. __-20__ dated March 16, 20__. We believe that the Bank illegally credited Bank Loan Agreement no. __-20__ dated November 15, 20__ for early repayment of the main loan in the amount of 46,793 USD Bank Loan Agreement no. __-20__ dated March 16, 20__. Thus, having studied the above materials, we came to the following conclusion.
According to Article 393 of the Civil Code of the Republic of Kazakhstan. A contract is considered concluded when an agreement has been reached between the parties on all essential terms and conditions in the form required in the appropriate cases. The essential terms are the terms of the subject of the contract, the terms that are recognized as essential by law or are necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached. T
also as specified in Article 394 of the Civil Code of the Republic of Kazakhstan . If the parties have agreed to conclude a contract in a certain form, it is considered concluded from the moment it is given the agreed form, at least according to the legislation, this form was not required for this type of contract. The written form of the contract is considered to be complied with if the written proposal to conclude the contract is accepted in accordance with the procedure provided for in paragraph 3 of Article 396 of this Code.
The concept of a contract provided for in Article 378 of the Civil Code of the Republic of Kazakhstan, an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations is recognized as a contract. And also according to Article 380. Freedom of contract, Citizens and legal entities are free to conclude a contract. Coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, legislative acts or a voluntarily accepted obligation. The parties may conclude an agreement, both provided for and not provided for by law.
Also specified in Article 383 of the Civil Code of the Republic of Kazakhstan. The contract and the legislation, the Contract must comply with the rules binding on the parties, established by the legislation (mandatory norms) in force at the time of its conclusion. If, after the conclusion of the contract, the legislation establishes rules binding on the parties other than those in force at the time of the conclusion of the contract, the terms of the concluded contract remain in force, except in cases where the legislation establishes that its effect extends to relations arising from previously concluded contracts. When interpreting the terms of the contract provided for in Article 392 of the Civil Code of the Republic of Kazakhstan, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole.
If the rules contained in paragraph one of this article do not allow determining the content of the contract, the actual common will of the parties must be clarified, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including negotiations and correspondence prior to the agreement, the practice established in the mutual relations of the parties, business practices, and subsequent behavior of the parties. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
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